Article 3 of the European Convention on Human Rights (ECHR) offers that no person should be endangered to agony or any brutal activity as punishment. Thus, Aisha, as she must be deported back to Tagistan since her student visa was invalid after the legal findings against her, must be offered protection if she must go back to Tagistan. The government has promised to provide all possible measures in protecting women from the Taliban violence but the NGOs in the area have reported that the security forces have not made any prior efforts in protecting the women and may be involved in the violence of the same. According to Morley, (2013), Article 3 of the European Convention on Human Rights, also supports that she cannot be deported back to her hometown if she may be a subject to torture in her own state. Thus, regardless of her visa being invalid, the law prohibits the action of her being transported back in her homeland since she is a subject to torture (Gaillott, Reed, & Berenpas, 2016). With this regard, Aisha has the right to remain in Seculandia as the law stipulates.
With regards to the law on Article 7 of the European Convention on Human Rights, no person is supposed to be punished for a criminal offense that is not under the national or international law. The Taliban movement is not a legal entity and thus their limitation to women from pursuing higher education in Universities is not legit. In this case, therefore, Aisha is not guilty of any charges that the Taliban movement may implicate on her since their laws are not recognized by the government. The government does not recognize the laws put forward by the Taliban movement, which has been noted to have illegal movements against women in pursue of Education, and thus transferring Aisha to her homeland can be regarded as one way in which the government may be in support of the illegal movement. According to Cameron, (2014), both Article 3 and Article 7 of the European Convention back Aisha on Human Rights as she cannot be deported back to persons who will torture her without any legal grounds.
In addition, Harris et al., (2014) argues that Amina has the freedom to choose her religion, way of dressing and religious practices. Yule, (2015) further adds that Article 9 of the European Convention on Human Rights advocates for the freedom of thought, religion and conscience. Thus, Aisha is not limited to practice her religious beliefs. The state of Seculandia, in fact, should not be suing her for demonstrating against the government for their treatment of women and their religion. Thus, the case that results in Aisha to be deported is not valid, and thus there is no reason for the cancellation of her visa. As for advice to Aisha, it would be paramount that she urges the Judge to reconsider her case with respect to Articles 3, 7 and 9 of the European Convention on Human Rights, which would give her an advantage in the case (Martin, 2013). This will ensure that she does not lose the validity of her student visa, thus she cannot be deported back to her homeland area. Moreover, even if the judge does not reconsider the decision on the verdict made, Aisha cannot be deported due to the Human Rights protection against torture in Article 3.
The margin of appreciation is of vital importance to Contracting states. To begin with, contracting states usually possess different cultural traditions and laws, and thus it is not possible to evade the fact that the State will occasionally need to view the application of the European Convention on Human Rights obligations in a variety of ways as argued by Donnelly, (2013). The different views are the basis for confrontations that may exist between the Contracting state and the court. According to Gaillott, Reed, & Berenpas, (2016), the court is provided with the means to which they can permit the international government to enjoy the freedom to apply the Convention according to their exclusive cultural traditions and legal law without altering the ultimate purpose of the agreement. Moreover, the margin of appreciation is an informative means for the Court of Justice when presiding on delicate matters, one of them being terrorism. The Court of justice has considered the threat of terrorism as one of the major factors that create a lot of difficulty for the European Convention on Human Rights and the State. According to Cameron, (2014), the European Convention on Human Rights has taken a steadfast place contrary to presenting any means of harmonizing practices in places where such notions had not been already integrated either within the Court’s jurisprudence or the structure of the Convention.
According to Harris et al., (2014), Irregularity and inconsistency is a risk to the manager of law as states appear to exceed their order while utilizing this principle with the optional forces granted to them. Furthermore, this precept is neither revered nor characterized in the tradition making a vulnerability to people and lawful professionals according to as far as possible to which this convention is permitted. Donnelly, (2013) argues that ‘The peril of proceeding to utilize the standard less tenet of the edge of gratefulness is that, particularly in the extended Council of Europe, it will end up being the wellspring of a malicious, understanding of human rights, disintegrating the value of the existing law and providing unexpected yielding among other circumstances, customs, and exercises’. This slipperiness in its definition takes into consideration manhandle of the process by neighborhood courts for the sake of carefulness prompting the absence of clearness. The court utilizes shifty words like “essential” and “sure” in its definition, words that are ambiguous and relative in their definition. Their implications fluctuate from case to case in each situation making instability in state opportunity henceforth an absence of consistency in judgments (Cameron, 2014). There is a requirement for a rule standard of recognizable proof to maintain a strategic distance from states seeming as though they are exempt from the laws that apply to everyone else. The absence of a precise and definite defense for the utilization of the convention by states ought to be demoralized as it debilitates the administer of law.
Harris, D. J., O’Boyle, M., Bates, E., & Buckley, C. (2014). Harris, O’Boyle & Warbrick: Law of the European convention on human rights. Oxford University Press, USA.
Cameron, I. (2014). An introduction to the European convention on human rights. Iustus förlag.
Donnelly, J. (2013). Universal human rights in theory and practice. Cornell University Press. Available at http://www.semesteratsea.org/wp-content/uploads/2014/04/Johnson-Plous-Wiegand_PLIR-3310_Ethics-and-Human-Rights-Plous-copy1.pdf
Gaillott, J., Reed, W., & Berenpas, M. (2016). The implications of spying and torture for human freedom from a Sartrean point of view. Ethics.
Yule, V. (2015). Human rights understood by all. Australian Humanist, The, (117), 14.
Martin, J. R. (2013). 2. Philosophy, gender, and education. World Yearbook of Education 1984: Women and Education, 31.
Morley, L. (2013). The rules of the game: Women and the leaders turn in higher education. Gender and education, 25(1), 116-131.